The petitioners' case follows precisely the lines I sketched in my first blog on the topic last month. The central issue is not the leak. It is not Nicola, or the truth of the memo. It is the cover up. Or as Carmichael's lawyers comically put it today, his decision to "misstate his awareness of the leaked memorandum" and to mislead the viewers of Channel 4 and his own constituents about the extent of his own agency in bringing the government paper to the attention of the Telegraph.

The petitioners argue that in denying any involvement in the leak, Carmichael made a false statement about his own personal character or conduct for the purpose of shoring up his tough general election campaign in the northern isles against the SNP. If the petitioners establish that Carmichael's dishonesty is caught by the Act, several gruesome consequences follow, the most obvious of which being a by-election in which the ousted MP cannot stand. Heather Green, a senior lecturer in law up at the University of Aberdeen, has this compelling and clear blog, putting the case for the prosecution, arguing that Carmichael may be vulnerable.

As has been pointed out by Professor Chalmers and others, however, the petitioners' case faces a range of snags and difficulties, hurdles and uncertainties. The 1983 Act has not been construed by the courts in this way before,
extending to lies a candidate may spin about their own mischief and
their own nature and character. On any view, this is a test case.

This is reflected in the legal papers which have been submitted on his behalf. So what is the essence of Carmichael's defence? He admits he lied. Barring a few cosmetic corrections to the transcripts of his Channel 4 interview, Carmichael largely accepts the facts as narrated by his disgruntled constituents. Interestingly, however, he denies that he authorised or knew that the Liberal Democrats had issued a statement suggesting that "the leak was not from a Liberal Democrat and that is the end of the matter."

Carmichael also claims that Nick Clegg blabbed without reference to him. When the former Deputy Prime Minister told the media that "Alistair Carmichael's been absolutely clear of course he didn't leak them" – Carmichael's legal papers allege that no discussion had taken place between Carmichael and Clegg about the leak before the former Lib Dem leader started fending off the press and publicly exonerating his senior Scottish colleague. This seems like a remarkable proposition.

Overall, however, Carmichael's defences are mainly of a legal rather than a factual character. In his response to the election petition, his lawyers make two main points. Firstly, they argue that the Liberal Democrat's lies were of a political, not a personal character. Under the Representation of the People Act, only lies about a candidate's personal character or conduct justify the court vacating an election result. We saw this in Watkins v Woolas. But there is other case law, limiting that kinds of lies that leave an MP vulnerable to judicial intervention.

Citing a case lodged by Scottish Tory MP Nicholas Fairbairn against the SNP in the 1970s, his lawyers argue that "the statements regarding the leaked memorandum do not relate to" Carmichael at all. But even if the court disagreed with Carmichael on that, they suggest his nationally broadcast falsehoods "do so purely inferentially and relate solely to his public or official character or conduct."

Put most simply, he is arguing that he was lying purely for political reasons as the Secretary of State for Scotland, not as the humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland. Like a capo di tutti capi who puts a bullet in your kidney, he alleges, it was nothing personal. And in a single bound, free. If the courts accept this argument, section 106 of the Representation of the People Act does not apply. No illegal practice. No vacated election. No by-election. And Carmichael stays on. This is a Yes, but defence.

Secondly, we have the geographical issue flagged up by Professor Aileen McHarg under my first blog. Although Carmichael's fictional account of his own conduct was broadcast on national telly, we have to remember that the election being challenged is his return
as the MP for Orkney and Shetland. Under the 1983 Act, purpose is important. In order to kick an MP out of their seat, their lies about personal character or conduct must be "for the purpose of affecting the return of any candidate at the election".

Although his point is not explored in much detail in the Liberal MPs skeleton arguments, he suggests that "the statements made by [Carmichael] during the interview with Channel 4 news were not made for the purpose of affecting the return of any candidate at the election." Another Yes, but defence. I may have lied about leaking like a rusty colander, but I did not do so in order to hoodwink the voters of Shetland or Orkney into returning me.

Whether or not you find these arguments convincing, these matters are now commended to the judgement of the Election Court and Lord Eassie and Lady Paton. Whether they are politically defensible is another story. Carmichael may win on the law, but his arguments have potential to do himself remarkable damage in the court of public opinion. Watch this space.

"Put most simply, he is arguing that he was lying purely for political reasons as the Secretary of State for Scotland..." I thought Parliament was dissolved at the end of March? In April would he legally have been allowed to call himself Secretary of State? I know candidates can't refer to themselves as MPs, but is it different for cabinet ministers?

His action and subsequent lie were a disservice to public service, that they were not directly against his rival candidate may be his escape. The LibDems should deny him the party whip - or whatever its called, but they won't.

i've held back from contributing to the fund in the expectation that he would back off and there would be no need for me to add to a food bank fund. Now I/we need to ensure financial protection to the Orkney & Shetlands persons who are facing the financial burden of litigation.

So, the electorate of Orkney and Shetland would be doomed to be represented in the national parliament for the next 5 years by someone who admits to lying publicly for political reasons and that's supposed to be perfectly acceptable?

He deserves to lose his seat but I have no doubt the Westminster establishment will rally around him for several reasons. The reasoning might leave others open to such curt action, not to mention the probability that if Carmichael went down he would decide to take his boss(es) down with him.

I actually feel sorry for Carmichael as a person, NOT as a politician. I think he got taken over by the Westminster establishment where, it seems, a lie is perfectly acceptable and normal. But is it in personal life? I don't think so.

Therefore it shouldn't be in politics either, more so as they are democratically elected representatives of their constituents, and speak for them.

It seems to me though that it's not just Carmichael will be on trial, it's every politician in the UK who thinks that lying is an acceptable way of doing politics.

The fundamental issue in this case is that of democratic accountability.Did this man present himself in an open and transparent manner to his electorate as the person they wished to have elected as their representative or not?The fact that the laws as defined by Westminster limit this accountability (in terms of recall) need to be revisited and should be loaded in preference of the constituents rather than the establishment political parties.If the electorate subsequently find out that the person they elected as their representative knowingly misled them during the elective period,then they must have the right of recall.The electorate should have the defined right to recall their representatives at any time of their choosing if circumstances dictate.He may well win his legal case but that will only serve to enhance the idea that the Westminster establishment does not work for people but for it's own interests.

If an election court consisting of Scottish Court of Session judges, sitting in Scotland, decide that the petitioners' interpretation of the 1983 Act is incorrect - quite possible, given that it's a test case - in what sense is that "the Westminster establishment" doing anything? They are not involved.

youngdegsy The man was still in post as Secretary of State for Scotland, a Westminster cabinet office, so in what way do you see them NOT being involved?

Unless he suddenly decided to run amok as a state official and employee without running it past David Cameron and Nick Clegg and their civil service spin monkeys, "the Westminster establishment" is undoubtedly involved.

It occurs to me that there could be some protracted arguments about the meaning of this. Does it mean "wholly and exclusively for that purpose", or could it mean that the purpose was a collective one, which included that as a purpose?

I also wonder if "indirect" is allowable, or does it have to be the direct purpose? For instance, Carmichael has said he would have resigned as Secretary of State, so if his purpose was that, then it saved him from having to resign. But that would have affected his chances as a candidate so there's a secondary purpose that results, to keep his advantages intact.

I think that's a bit sticky for the complainants, but there is another angle which could perhaps be explored, and that is that Carmichael had a month to own up to his lie, had a reminder by the enquiry announced, and statements by Clegg (and others) giving him plenty of opportunity to come clean. Is that not a lie of omission?

Perhaps too he has made other statements specifically during the campaign itself like "I am your honest candidate as MP, and the SNP want the Tories back in power". Would that count, and could it be added to the petition, after the event, during the hearing, with witnesses, as it's connected with the initial lie about the leak?

I've read some summations and discussion between Law Lords from cases, and there can be a lot of discussion about what might seem to common folk like me, a lot of toodoo about notalot. But I can see that it is important. Law should be precise, it seems seldom to be so!

Carmichael had already, publicly, spoken out against smearing opponents. Had he not lied to cover up his actions, he would have revealed himself to be a hypocrite - professing one thing in public, but acting differently in private.

He would have inflicted upon himself the same damage he had tried to inflict on Nicola Sturgeon by smearing her.

I don't think the irony of that would have gone unnoticed by his opponents.

His lies are of a personal character inasfar as he defamed himself in the eyes of his constituents, and by continuing to stand as a candidate, and campain for election during a very tight election, all the while knowing that he lied on a matter of trust, he took his constituents and those who voted for him as mugs. It's the equivalent of selling somebody a duff car, knowing it's duff, but not letting on about it. Had he not told a lie, apologised for making an error of judgement before the election, then that would be a different matter.

I note complete silence so far from the LibDem party leadership as to whether the Party will pay Carmichael's legal fees. It puts them in a spot. Are they going to put Party money behind the defence that a politician should be able to lie and suffer no consequences? Or are they going let AC pay his bills? Or twist the arm of some fat cat donor? I doubt an AC crowd fund effort on Indigogo would get tuppence ha'penny!

He doesn't need a crowd funder, because we, the taxpayers, will be paying for it already. He was a state employee at the time and the state will pay for his defence. So, as UK taxpayers and crowd-funders, we are actually paying both sides of this action.

That's what we call democracy in this sad excuse of a legal system in our country.

How do you know who is paying his defence? Please give me some links to your information, because I feel it is very important that the Scottish electorate is aware of what is happening in a court case we have funded ourselves, and may also have to give additional funds to the electorate of Orkney and Shetland at some poinht in the process.

Most of us are not lawyers on here, and can only be guided by legal opinion given by those legal experts who choose to share their knowledge with us.

When I worked in the NHS, had I told a blatent lie about others,based on my position as an employee which implicated management as being behind the lie (the "I was only doing what I was telt") argument, then I would expect my employers to pay for my defence. Unless they did not want to defend their own position.

I realise that I'm probably being extremely thick here, but I have learned so much from your writings, and will look forward to learning even more.

I don't think it is thick, Humerous Vegetable, but I agree with Andrew that it's incorrect. We don't know if anyone is helping to pay AC's expenses, but we do know that the Government will not be.

There is such a thing as vicarious liability - where an organisation is held liable for an action by one of its employees where the action was taken in the course of their business. But this isn't relevant here because the legal action is not against the Government (which AC is no longer a member of anyway).

Irrespective of this, though, even when he served as Secretary of State, AC was not an employee of the Government at all. Ministers are independent office holders under the Crown. They hold office at the pleasure of Her Majesty, and so can be appointed and dismissed at will. They have no employment rights or legal protections - so no potential redundancy, or claims for unfair dismissal, or complaint that someone else was appointed as a Minister or promoted because of a protected equality characteristic (sex, race, religion, etc). So there is no comparison with employees elsewhere (such as the NHS).

It might perhaps be different if the legal action were against or concerning the actions of a (current or former) civil servant, because they are employees in a more conventional sense.

The legal action is against AC personally, not against the Government. It is not a claim for damages, it is a constitutiinal law process, the effect of which would be to invalidate the declared election result in the Orkney & Shetland constituency. The Government has no interest (political, moral or financial) in whether or not AC remains the MP for Orkney & Shetland or not, which is all that this legal action is about. So they could not possibly justify to taxpayers and the public paying any contribution towards AC's legal expenses (which is not a defence as such, though he clearly is a directly interested party in the proceedings). So it remains possible that AC might get some financial assistance from someone, but that will not be from public funds.

Thank you for clarifying this youngdegsy., and I appreciate your detailed reply.Yes, I remember vicarious liability, which was carried by my professional body, rather than the NHS boards I was employed by so far as I can recall.

Am still a bit bemused however. This was a Cabinet Secretary, appointed by the Prime Minister, via the Privy Council and the Crown, to fill a position for which he was paid by the taxpayer, and he has no-one to whom he is accountable in his role? Except his previous electorate of course, which presumably was not involved in the leaked memo fiasco.

If the current Secretary of State for Scotland suddenly decides to relocate Trident to the Thames estuary, and accidentally blows up Canary Wharf, nobody in government is going to hold him accountable or pay his defence costs, or their own?Yes, depressingly-thick is my middle name. Am going to stay off this blog from now on.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.